Question relative to the property of a loch, where the one party was infeft in it per expressum, and the other had had a prior right to the lands cum lacu &c.
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Sir James Scot of Rossie being heritably infeft in the lands of Rossie, with the Loch of Rossie per expressum, pursues declarator against Lindsay of Kilquisie, to hear and see it found and declared, that the pursuer has the only right to the loch, and that the defender has no right at all thereto, neither in property or community, and no privilege therein; and therefore he ought to be secluded therefrom, and from all possession therein; and the defender alleging, That he ought to be assoilzied, because both the parties' lands, and the loch libelled, pertained of old to one and the same author, (viz. to the Earl of Crawford) in property, and the defender and his predecessors were infeft in the lands of Kilquisie, cum lacu et piscationibus, by the Earl of Crawford 200 years since, long before ever the pursuer or his authors were infeft in the lands and loch libelled; likeas by virtue of the said anterior right, the defender and his predecessors have been in continual possession past memory of man, immemorially in fishing within the loch libelled with nets and wands at their pleasure; neither ought the pursuer's posterior right, being many score years after the defender's right foresaid, of his lands and of his loch per expressum, specially denominated, derogate to the defender's prior right of his lands cum lacu, &c. there being no other loch within the pursuer's nor defender's lands, but only the loch libelled, and to the which loch the said defender's lands lie bordering and contigue; and the pursuer replying, That his special infeftment of the loch of Rossie per expressum, albeit posterior to the excipient's right foresaid, ought to give him preference to the defender, who was only infeft cum lacu generally; likeas in fortification of his right, the pursuer offered to prove continual possesion of fishing within the said loch, by boats, nets, and all other manner of fishings; and by bigging of eel-arks, and slaying and using the eels and fishes taken at his pleasure, and also by debarring this defender and his predecessors from any manner of fishing within the same, and impeding them therein; the defender duplying, that he being prior in tempore must be potior in jure; and for the alleged interrupting of the excipient, by debarring of him to fish, that ought not to be respected, seeing that debarring being done via facti et non via juris, ought not to corroborate, or establish a right to the pursuer, which was not in itself good without that act, neither ought that deed to prejudge the excipient; for that impediment, alleged made to the defender, and his predecessors never being authorised in law, but being violent and unlawful, ought not to add force to the pursuer's right, especially seeing notwithstanding of any debarring, the defender and his authors retained and kept still their said possession of fishing, and they could not hinder the party to do wrong, but notwithstanding of that wrong done, they ever kept their said possession, and therefore ought not now to be excluded from that manner of possession which they have immemorially had, by virtue of their said right; for the pursuer might retain the possession which he had, and the defender his also, as he had it, and as ilk one of them has prescribed by their rights, according to the quality and manner of their possession, as said is. The Lords repelled this exception, and duply, and admitted the pursuer's reply, and in respect of the said interruption, found the right to pertain to the pursuer, and excluded the defender totally from all right to the loch, and all sort of privilege therein, notwithstanding of his anteriority of right, and offer to prove retention of possession immemorially as said is.
Act. Nicolson.Alt. Stuart.Clerk, Scot.
Durie, p. 774.
